21 Jul 2006

CleanFlicks Confusion and the "Family Movies Act"

There seems to be a lot of confusion going around as a result of the
recent ruling against the Utah-based “CleanFlicks” movie-censorship
service. In particular, there seems to be a widespread belief that the
decision would somehow prohibit you from distributing a set of
instructions that would cause a playback device to skip certain portions
of a film. I don’t think this is the case at all, and frankly I’m not
sure where people got this idea: the law, thanks to a little thing
called the “Family Movies Act” is quite clearly on the other side.

What was prohibited in the CleanFlicks case was the reproduction that
CleanFlicks was doing in order to produce the edited versions. They were
taking a movie, editing it, and then selling the expurgated version –
admittedly alongside the original, but they were reproducing the film
just the same.

Other companies – perhaps ones with better lawyers? – who took a
different tactic and avoided the reproduction step (by delivering to the
customer an EDL that would cause a specially-designed DVD player to fast
forward through various ‘offensive’ parts) were unaffected
by the ruling.

There’s an pretty good
analysis of the CleanFlicks verdict on FindLaw, which isn’t too long
and is worth reading. In particular: “The defendants also argued that
they were protected by the so-called ‘first sale’ doctrine … [they]
failed to win on this affirmative defense, because they were not just
dealing in the hard copy, but rather making copies of it.” (Emphasis
mine.)

If you’re willing to spend some more time reading things actually
written by folks who have law degrees, I recommend this
substantial article from the Georgetown Law Journal, which was
written in 2004 and examines the viability under then-current copyright
law of several video-censoring technologies, including old-school
razorblade tape splicing (literal cutting and splicing of the customer’s
purchased tape, so there’s no copying), CleanFlicks-type digital
editing, and EDL-based ‘skip-over’ systems.

Although CleanFlicks no longer offers edited copies of DVDs, another
Utah company, ClearPlay, still offers an EDL-based product, as can be
seen on their website.

Perhaps anticipating a legal challenge to home-movie censorship by the
entertainment industry, the Bush administration last year pushed through
the “Family Movie Act of 2005,” which specifically allows you to make
changes to an authorized copy of a motion picture, as long as you don’t
create a fixed copy of the edited version.

The best part of the law? It’s not limited purely to obscenity edits; according
to one Forbes article, it could be used just as easily to protect a
fan’s reversal of George Lucas’ latest butchery of Star Wars as it
could the removal of Kate Winslet’s nudity from Titanic.
(Sadly, apparently the technology can’t replace Jar Jar Binks with Kate
Winslet. Yet.) And the door is thus opened to all sorts of real-time
editing and mixing. Even though you may not care about the same sort of
censorship that people in Utah apparently do, the law makes it clear
that putting a disc in your player’s drive does not require you to give
over control to it.

Overall, that’s a good thing in my book, regardless of the motivation.